Family pension should not be deducted from compensation in motor accident claims, and dependants must be established based on evidence.

JUDGMENT :

For the sake of convenience, the parties are referred as per their ranks in the claim petition.

2. These appeals are filed by the claimants as well as Insurance company questioning the quantum of compensation.

3. It is not in dispute that the husband of the first claimant and father of the claimants 2 to 4 namely Thangaraju died in a road accident that had taken place on 10.11.2015 involving Toyota car belongs to the first respondent insured with the second respondent.

4. It is the specific case of the claimants that the driver of the car belonging to the first respondent came in a rash and negligent manner and dashed against the two wheeler driven by the deceased Thangaraj. Therefore, the claim petition was filed seeking compensation of Rs.90,00,000/-.

5. The claim petition was opposed by the second respondent/Insurance Company by denying the manner of accident as averred in the claim petition. The first respondent/owner of the vehicle remained ex-parte before the Tribunal.

6. Based on the evidence available on record, the Tribunal came to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the first respondent car bearing registration No.TN-06H-7867. The amount payable to the claimants was quantified at Rs.16,45,000/-. Aggrieved by the quantum of compensation, the claimants and the Insurance Company have come by way of these appeals.

7. The learned counsel appearing for the claimants would submit that the deceased was a retired headmaster drawing a pension of Rs.29,485/- at the time of accident and the Tribunal committed an error in fixing only Rs.25,000/- as income of the deceased. Hence, the loss of dependency is to be enhanced.

8. The learned counsel appearing for the second respondent/Insurance Company would submit that even after the death of the deceased, the first claimant/wife of the deceased was drawing family pension. Therefore, the Tribunal should have deducted the same from the pension payable to the deceased.

9. The learned counsel further submitted that in the absence of any evidence, the Tribunal fixed Rs.25,000/- as notional income. He further submitted that the claimants 2 and 3 are married daughters and 4^th respondent is an employed son. Therefore, they may not be treated as Dependants of the deceased and hence the Tribunal committed an error in deducting 1/3^rd

10. In order to prove the income of the deceased, the Treasury Officer was examined as PW.3 and through her the pension papers of the deceased have been marked as Exs.X1 and X2. A perusal of the evidence of PW.3 along with X1 and X2 would indicate that the deceased was drawing the pension of Rs.29,485/- at the time of accident.

11. It is stated that after the death of the deceased, the first claimant is entitled to family pension. However, the Apex Court in Helan C. Rebello and others Vs. Maharastra State Road, Transport Corporation and others reported in Manu/SC/0621/1998 categorically held that the family pension shall not be deducted, while calculating the loss of dependency. The relevant portion of said judgment reads as follows:

“Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No co-relation between the two.”

12. In yet another judgement in Sebastiani Lakra and Ors. Vs. National Insurance Company Ltd. and Ors reported in MANU/SC/1162/2018. The Apex Court while holding pension shall not be deducted from compensation payable under Motor Accidental Claim, observed as follows:

12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on